With sentencing, appeals and possible clemency for the Hebron shooter waiting in the wings, Israel's legal system faces an ongoing test

Israeli border police officers stand next to a poster of Sgt. Elor Azaria, during a demonstration by hardline nationalists who support him, outside the Israeli military court in Tel Aviv, Israel, Wednesday, January 4, 2017. (AP Photo/Oded Balilty)

For the first time in over a decade, an Israeli military court convicted an IDF soldier of manslaughter on Wednesday, bringing to a close one chapter of the “Hebron shooting” case, and opening several more: sentencing, appeal and requests for pardon.

For the next several weeks, as the various legal mechanisms churn, the fate of Azaria will hang in the balance and with it, the path a riven country will forge for itself in the wake of the shooting and trial. Politicians and backers of the soldier wasted no time Wednesday in urging the convicted soldier be pardoned, but clemency could invite additional international scrutiny into war crime allegations brought against Israel, one legal expert said.

Almost a year after the incident itself, the details of the case are well known the world over. On the morning of March 24, Abdel Fattah al-Sharif and Ramzi Aziz al-Qasrawi attacked two IDF soldiers stationed in Hebron. One soldier was wounded; the second opened fire at the attackers, killing al-Qasrawi and severely wounding al-Sharif.

By all accounts, what followed was poorly managed and disorderly. Additional troops, as well as civilian medics and security personnel, flocked to the scene. An order from the regional brigade commander to clear the area of civilians went unheeded. Soldiers and local residents with no direct connection to the incident ambled through the crime scene. Civilians gave orders to soldiers.

In the midst of this confusion, a medic from the Kfir Brigade, Sgt. Elor Azaria, handed his helmet to another soldier, cocked his weapon and shot al-Sharif in the head, killing him. When asked why, Azaria — the so-called “Hebron shooter” — told his commander that the Palestinian assailant “deserved to die.”

A video of the incident, recorded by a Palestinian volunteer of the left-wing B’Tselem human rights organization, was posted to YouTube later that day and sparked a national debate that has raged ever since. (The IDF, which includes the military court, notes that the investigation into the incident began before the video went public.)

One of the central arguments by Azaria’s attorneys was that the young soldier had seen in the supine, barely moving al-Sharif a credible threat at the time of the shooting. Witnesses told the court that the incapacitated assailant had been wearing a jacket on a warm day that could have been concealing an explosive device. No matter that some of those same witnesses could be seen in video footage wearing heavier coats than al-Sharif, or that the day was not, in fact, unseasonably warm.

If people on the scene truly feared a hidden bomb, the court asked, why did they walk so calmly through the scene? If Azaria sensed al-Sharif could be planning a secondary attack, why was that not the reason he gave to his commander initially?

‘There’s the video and what [Azaria] said afterwards, what could the defense say?’

The judges dismissed the testimonies of Jewish Hebron residents who were on the scene as misleading and spurious, and labeled “unfortunate” statements made by former IDF generals who came to Azaria’s aid. According to the court, the former top officers didn’t have first-hand knowledge of the incident and made irrelevant arguments about rules of engagement that weren’t applicable to the Hebron case.

Azaria’s defense team also brought in its own pathologist to argue that al-Sharif was actually killed by his other wounds, not by the head-shot — but to no avail.

Amichai Cohen, dean of the Faculty of Law at Ono Academic College, said the court’s decision, in light of the overwhelming evidence, was “logical” and “had to be done.”

“There’s the video and what [Azaria] said afterwards. What could the defense say?” Cohen told The Times of Israel. “They were dealt a weak hand.”

A pardon for Azaria

Prof. Asa Kasher, who co-wrote the IDF’s code of ethics, applauded the court’s guilty verdict for the “most unacceptable act” committed by Azaria. To Kasher, the decision was proof that the military legal system works.

Though the story dominated headlines in Israel and abroad in the hours immediately following the court’s decision, the veteran ethicist hazarded that, “in a few weeks,” the Azaria case would fade into the background and eventually be largely forgotten by Israeli society.

However, a conviction is not the end of this story. Azaria still needs to be sentenced, the length of that prison term will undoubtedly be another contentious issue, and his attorneys have already indicated they will appeal the verdict.

Elor Azaria, an Israeli soldier who shot a Palestinian terrorist in Hebron, sits in the courtroom before the announcement of his verdict at the Kirya military base in Tel Aviv on Wednesday, January 4, 2017 (Miriam Alster/Flash90)

Cohen also praised the court for acting impartially and rising above the “political involvement and the protests” in reaching its decision.

From the start, the Azaria case has been mired in politics, with some lawmakers denouncing Azaria’s actions unequivocally, others supporting him unequivocally and each side accusing the other of interfering in the trial.

While Prime Minister Benjamin Netanyahu and then-defense minister Moshe Ya’alon had a tense relationship prior to the Hebron shooting in March, many see the shooting — and the two men’s diverging responses to it — as a catalyst for Ya’alon’s ousting two months later. Ya’alon was withering from the start about the soldier’s actions; Netanyahu became increasingly empathetic to Azaria and his family.

‘We must carefully consider the possibility of pardoning [Azaria]’

The responses to the guilty verdict came quickly and mostly as expected on Wednesday.

Politicians who had denounced Azaria’s actions from the start lauded the military court’s decision, but added that this was not a “happy day” for anybody. Those who had supported the Kfir Brigade soldier attempted to strike a balance between denouncing the decision and avoiding attacks on the judges who made it, employing the “I respect the court, but…” sentence structure.

“We must carefully consider the possibility of pardoning [Azaria],” Labor MK Shelly Yachimovitch said, in comments at odds with the center-left’s generally more equivocal reaction.

Despite such support, Cohen, who is also a researcher at the Israel Democracy Institute, did not see an immediate pardon as likely.

Moreover, Cohen warned that issuing immediate clemency to Azaria would run the risk of delegitimizing Israel’s legal system. “It would just become a game,” he said.

Though some eventual form of leniency can be expected, an outright pardon with no jail time could be used to show that Israel does not adequately investigate and punish its own. This could open the Jewish state to additional international legal scrutiny, Cohen said.

Legal legitimacy

Azaria isn’t the first IDF soldier to be convicted of manslaughter by a military court, but it is an exceedingly rare occurrence.

These types of cases, while rare, are necessary for Israel to maintain its legal and moral right to claim that it adequately polices itself, Cohen said.

“We have to show that we’ll investigate ourselves and that the world doesn’t have to,” he said.

Especially in the Azaria incident, where the evidence and the soldier’s own comments to his commander were particularly damning, the judges could not have made any other ruling, Cohen said.

The legal team of IDF Sgt. Elor Azaria speaks to press at the Kirya military base in Tel Aviv following a verdict on January 4, 2017. (Miriam Alster/FLASH90)

“This wasn’t a borderline case,” he said. “This was a case where you have to bring [the soldier] to justice.”

But if “Azaria were pardoned tomorrow,” any credibility Israel had in international legal forums could be lost, Cohen said.

‘This wasn’t a borderline case. This was a case where you have to bring [the soldier] to justice’

Most soldiers accused of manslaughter or murder settle out of court, avoiding a manslaughter conviction by pleading guilty to lesser charges like illegally discharging a weapon or disobeying orders.

According to Cohen, cases of soldiers being found guilty of murder or manslaughter are highly uncommon everywhere, not only in Israel.

A remarkably similar incident occurred in the British Army. In 2011, a Royal Marine, Sgt. Alexander Wayne Blackman, was found guilty of murder for killing a wounded Taliban fighter. Much as Azaria’s case did in Israel, the Blackman trial brought to light deep rifts within British society, with many calling for his release, while others noted simply “murder is murder.”

Back home, meanwhile, on April 11, 2003, Sgt. Taysir Heib shot and mortally wounded British activist and photographer Tom Hurndall in Gaza. Heib initially claimed that he’d shot at an armed Palestinian, but when presented with evidence to the contrary, admitted that he’d fired at Hurndall, but hadn’t meant to hit him. Heib was found guilty and sentenced to eight years in jail. He served six and a half before he was released early for good behavior.

More Elor Azarias

The Azaria case has been deeply divisive in Israeli society, raising uncomfortable questions the country will need to answer, including how settlers interact with and influence soldiers in the West Bank, how the IDF and Israel’s emergency services provide — or, in the Azaria incident, don’t provide — medical care to wounded Palestinian assailants, and how to keep parliamentary politics out of the military.

“Of course we need to ask if the system is doing enough to teach soldiers what’s allowed and what isn’t, if it’s protecting them, if it’s putting them in difficult situations,” Cohen said.

The army also needs to ask itself “if there are more potential Elor Azarias out there” and do what it can to prevent similar incidents.

“Soldiers and commanders know very well what is expected of them,” Kasher said in a phone briefing organized by The Israel Project after the verdict was delivered.

Kasher added that the IDF would do well to have the operating procedures “written in a more concrete way.”

But these concerns should be kept in proportion, Cohen said, warning against looking to the Azaria incident for “sweeping conclusions” that have relevance outside this particular case.

The judges’ decision to dismiss the Hebron residents’ testimonies doesn’t mean that all Jewish settlers testimonies will be discounted in the future, Cohen said, though he “understands that some people will say that.”

However, both he and Kasher saw this case as an aberration, an individual soldier who acted incorrectly, and not indicative of a systemic problem.

Cohen also brushed off an oft-heard claim that this verdict will make soldiers think twice before firing their weapon when necessary. “The IDF is better trained than that,” he said.

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